This article serves as a reference tool for anyone in search of a medical malpractice attorney.  My wife, Cynthia Paddock Doroghazi, suffered a traumatic brain injury in May 1990.  In her recently-published book, Searching for the Open Door: A Woman’s Struggle for Survival After a Traumatic Brain Injury, Cynthia describes the medical malpractice, which caused her traumatic brain injury (TBI), her physical recovery through intense rehabilitation, her return to graduate studies at the Johns Hopkins School of Advanced International Studies, and her spiritual awakening.  The first chapter of Searching for the Open Door: A woman’s Struggle for Survival After a Traumatic Brain Injury summarizes the events surrounding her TBI through a reconstruction of her medical malpractice trial some five years subsequent to her brain injury.  In thinking about her malpractice lawsuit, it occurred to me that the concept of suing for malpractice, hiring a lawyer and going to trial is foreign to most laymen.  (To learn more about Searching for the Open Door: A Woman’s Struggle for Survival after a Traumatic Brain Injury, or to read a sample chapter, click on:

http://www.newriverpublications.com/Searching_for_the_Open_Door

            Describing the do's and don’ts in the process of retaining an attorney is not especially difficult for me given that I am, in fact, a trial lawyer.  However, because my practice has absolutely nothing to do with medical malpractice or personal injury – my practice being limited to representation of the United States – I am able to give unbiased advice.  In other words, I have no economic agenda behind offering suggestions on how to hire an attorney to pursue those responsible for causing a brain injury.

            When you or your loved one suffer an injury as the result of someone else's action, it seems somewhat logical that the person would offer to compensate you for your injury, or that their insurance company will step up to the plate and offer a fair settlement.  Unfortunately, that simply is not reality.  Many people do not take responsibility for their actions, and insurance companies profit from under compensating injury victims.  Insurance companies and their lawyers also know the governing law backwards and forwards, and they know that most non-lawyers have no idea what legal rights and remedies they possess.  In general, I always remind people that insurance companies are not making profits when paying claims; or stated differently, insurance companies are in the business of making money.  Paying claims defeats the purpose.

            An experienced personal injury lawyer knows how to develop your case, how to investigate and/or negotiate settlement of your case with an insurance company, and, if necessary, how to take your case to trial.  While it is theoretically possible to negotiate your claim with an insurance company on your own, insurance companies will typically do everything they can to minimize their exposure at your expense, while simultaneously attempting to elicit statements from you that may damage your position should your case ultimately go to trial.  There is a saying in the legal profession that if you represent yourself, you have a fool for a client.  There is little doubt that, in the realm of malpractice, the injured party is almost guaranteed to come out much further ahead, financially, by hiring legal counsel; this is net of any contingency fee you will ultimately pay to your attorney.

            Personal injury attorneys almost always accept cases on a contingent fee (or "contingency fee") basis.  From your point of view, this means that if they win your case, they receive a percentage of the award as their fee.  Conversely, if they lose your case, they do not receive an attorney fee.  You do need to keep in mind that attorney fees are different from costs, and you may be responsible for certain costs associated with your case, such as the filing fee for your lawsuit, even if you lose.  While this is rarely an issue, as most civil litigation settles short of trial, you should clarify the issue of costs with your attorney before signing any retainer agreement.

The amount of the contingent fee your attorney will charge will vary somewhat from state to state.  In most states, the attorney fee will range from one third to forty percent of a personal injury award.  If your case is potentially worth a lot of money, you may be able to negotiate a reduction of the attorney's contingent fee; however, the best personal injury attorneys are usually not willing to negotiate their fees because they know that they are often able to recover substantially more money for their clients than attorneys with lesser skills, resulting in a greater net award to you.

Finding the right attorney

Many state bar organizations offer referral services to help people find attorneys. Usually, any member of the organization can list with the state’s referral service, and you cannot know, just from the referral, that the attorney is truly qualified to handle your case.

There are also a number of specialty organizations, such as the American Association for Justice, http://www.justice.org which offer online directories of their membership.  Most lawyers with significant personal injury practices are members of AAJ.  However, most legal organizations are open to all attorneys, and membership means only that the attorney has paid the membership fee.

The same caveat applies to the use of on-line directories.  A number of commercial online directories claim to screen their attorneys, or claim to list only highly qualified attorneys.  Most are not being completely forthright on this point.  Regardless of their promises, most on-line directories will list any personal injury attorney, who pays the required fee, and there is absolutely no guarantee that the listed attorneys are qualified to handle your case.  Somewhat part of this same issue are websites on the Internet which look informational, but in fact, are owned by law firms.  Be very wary of any "injury information" site that lists law firms or offers lawyer referrals, particularly if it does not make obvious the identity of its sponsor.

Generally speaking, television and radio advertisements are also a very bad way to find a personal injury attorney.  Many advertisements are paid for by referral agencies, which collect large numbers of calls and then divide them up between member attorneys.  Even when the advertisements are paid for by a law firm, often many of the cases are simply referred out to other firms who share the enormous cost of advertising.  It is quite likely that the attorney with the big advertising campaign will not have an office near you.  Unless your case is worth a lot of money, you may well find that you are quickly referred to a different firm or that you cannot get much attention for your case.

Your best bet for finding a competent malpractice attorney is through something known as “referrals”.  When it comes to hiring a personal injury attorney, many of the best personal injury attorneys do little or no advertising.  They get their cases through referrals from other attorneys, due to their reputations for doing good work and getting excellent results.  Therefore, probably the best way to determine which personal injury attorney to retain is to consult with an attorney you trust.  If you do not know any attorneys, ask your friends for names of attorneys they trust.  It is important that they give you the name of an attorney who can handle your case, an attorney who specializes in medical practice in this example.  Make sure that the attorney from whom you are asking the referral is one that can comprehend the overall legal issues of your case and is well-positioned to know which attorneys in your community have the skills to competently handle the case. 

Another point to keep in mind within this context is that attorneys frequently receive "referral fees" when they send personal injury cases to other attorneys or law firms.  The amount of this fee can be significant - about a quarter to a third of the fee received by the personal injury attorney who handles your case.  This gives the attorney an incentive to refer you to a good personal injury attorney.

If you look through the yellow pages, you will see that most lawyers claim to specialize in "personal injury" cases.  Many of these lawyers have handled very few personal injury cases, and some have never had even a single personal injury case.  The yellow pages can provide some degree of confirmation that a particular law firm is established, but even a big advertisement does not certify that a firm is qualified to handle your case.

You should also keep in mind that when it comes to retaining a personal injury attorney, bigger does not necessarily mean better.  During my twenty-three years of developing cases for trial, there have been countless times where attorneys have attempted to negotiate a settlement, saying that the case would ultimately be turned over to trial counsel in their firm if the case cannot be resolved without trial.  In most cases, that trial attorney was just another attorney in the big firm representing the client.  The actual attorney assigned the case had, at best, an incomplete comprehension of the very specialized practice area necessary to the best representation of his/her client. 

When you are seeking a personal injury attorney, recognize that most personal injury attorneys do not practice medical malpractice law.  Just as you would seek a specialized doctor to provide a special type of medical care, the practice of medical malpractice law is very specialized and in retaining an attorney it is almost always best to look for an attorney or law firm, which has significant experience in that area of law.

Further, within the area of medical malpractice, certain law firms specialize in particular types of injuries or causes of action.  There are personal injury law firms which focus primarily on burn injuries, or brain and spinal cord injuries.  There are personal injury firms which concentrate primarily on car accidents, construction accidents, or litigation over defective products.  You will benefit from asking whether a lawyer you consult has experience with your type of injury before you make your hiring decision, and do not hesitate to ask that lawyer for a list of previous case summaries that have the same or similar factual patterns as yours.  Always keep in mind, however, that the attorney/client privilege generally precludes an attorney from furnishing references by name, but not by reference to similar or common facts to your specific case.

Although personal injury attorneys rarely charge for an initial meeting with a potential client, before your meeting you should ask if there is a fee for an initial consultation.  If there is, you will be obligated to pay that fee even if you do not hire the attorney.  However, even when the consultation is free, you have every right to take some time to think before you hire an attorney, and you have every right to decide not to hire that attorney.  Retaining a personal injury attorney is a big step, and there is nothing wrong with consulting several attorneys to find one with whom you feel comfortable.

 Questions to Ask

When you first meet with a perspective personal injury attorney, you should consider asking some or all of the following questions:

·        What are your areas of specialization?

·        Have you handled cases like mine before? How many? What was the outcome?

·        Will you be the only attorney who works on the case? If not, who else will work on it?

·        How long will it take for this case to be resolved?

·        Will you take my case on a contingent fee basis?

·        Are there things I should do to improve my case, or to help you?

·        How will you keep me informed about the progress of my case?

·        If I contact your office with questions, how long will you take to return my call?

·        If you are unavailable or on vacation, whom can I speak to about my case?

·        How often do you go to trial?

·        If I am not happy with a settlement offer and you want to settle, will you go to court anyway?

·        If I am happy with the offer but you think we can win more at trial, will you follow my wishes?

·        Have you ever been disciplined by an ethics committee, or been suspended from the practice of law? If so, why?

·        What "continuing legal education" courses have you attended during the past few years? Have you taught any?

A written retainer agreement is the best way to ensure that your rights are protected, and in many jurisdictions is specifically required for a contingent fee agreement to be enforceable.  Many personal injury attorneys use a relatively short fee agreement, but even if it looks short and simple, you absolutely must take your time and read the entire agreement before signing.  Should you find something you don't understand, ask for clarification before you sign; also, if you do not like the answer, simply take that agreement to an attorney who you know and trust for an opinion on the fee agreement.

Your attorney works for you, and you have the right to terminate the attorney-client relationship.  You should note, however, that your attorney is still entitled to compensation for work performed on your case.  If the attorney was representing you on a "contingent fee" basis, the attorney will often be entitled to a portion of the proceeds of your case once it has been resolved.

Before you fire your attorney, however, you should know who his/her replacement will be, and you should also know, for certain, that your new choice of counsel is willing to step into the shoes of your previous attorney.

Copywright 2007 Stephen R. Doroghazi